Baronessa and Secretary to the Department of Family and Community Services

[2003] AATA 1276

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1276

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2003/1023

GENERAL  ADMINISTRATIVE DIVISION

Re:            MARIA BARONESSA

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:             1 December 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

SOCIAL SECURITY ‑ Family Tax Benefit ‑ income tax return not lodged by 30 June 2002 ‑ whether entitled to top up payment for year ended 30 June 2001

A New Tax System Family Assistance (Administration) Act 1999

REASONS FOR DECISION

1 December 2003  Mr B.H. Pascoe, Senior Member

1. This is an application to review a decision of the Social Security Appeal Tribunal dated 22 August 2003 which affirmed a decision of the Secretary to the Department of Family and Community Services (the respondent) that the applicant, Mrs M. Baronessa, was not entitled to a "top up" payment of Family Tax Benefit (FTB) for the year ended 30 June 2002. 

2. At the hearing Mrs Baronessa was unrepresented and assisted by her husband.  The respondent was represented by Ms K. Navarro, an advocate with Centrelink.

3. During the year ended 30 June 2001, Mrs Baronessa was paid fortnightly instalments of FTB based on combined estimated income of herself and her husband of $39,560.  The instalments totalled $5,792.95.  Actual combined income shown in the income tax return lodged in October 2002 for the year ended 30 June 2001 was $27,727.  This would have produced an entitlement of FTB of $9,200.95.  As the return had not been lodged by 30 June 2002, the respondent determined that there was no entitlement to the difference as a "top up" of FTB.

4. By letter dated 1 May 2002, Mrs Baronessa was advised that:

   …

   If your partner needs to lodge a tax return for the 2000/2001 financial year, then you must do so before 30 June 2002.

   Please read and have your partner read the enclosed information regarding 'Do you need to Lodge a Tax Return for the 2000/01 income year' If your partner does not need to lodge tax returns, either complete the attached statement and in return in the envelope provided, contact us on the phone number at the bottom of this letter or come into any Family Assistance Office.

   Important Information

   If you and/or your partner do not lodge tax returns, or let us know you are not going to lodge by 30 June 2002, you may be asked to pay back the Family Tax Benefit and/or Child Care Benefit you have received for the 2000/2001 financial year.

   No 'top up' of Family Tax Benefit or Child Care Benefit for the 2000/2001 financial year can be made if your partner lodges income tax returns after 30 June 2002.

A further letter was sent on 6 June 2002 reminding Mrs Baronessa of the need to lodge an income tax return by 30 June 2002.  There was no dispute that Mr Baronessa lodged his return in October 2002.

1. Section 28 of A New Tax System Family Assistance (Administration) Act 1999 (the Act) is quite clear that:

   ·where a person has received FTB;

   ·the person or their partner is required to lodge an income tax return for the year ended 30 June 2001;

   ·the person or their partner has not lodged such return by 30 June 2002;

   ·no income tax assessment has been made by the Commissioner of Taxation by 1 July 2002; and

   ·the return is lodged after 30 June 2002

   the person is entitled to the lesser of the entitlement to FTB based on the actual taxable income for the year ended 30 June 2001 or the total instalments actually received.

2. Mr and Mrs Baronessa said that they had interpreted the letters advising of the need to lodge a return by 30 June 2002 as being a requirement of the Australian Taxation Office and if the late return was accepted by that office then the requirement had been satisfied.  They also argued that there were special circumstances which caused the delay including that Mr Baronessa had commenced his own business and the calculation of taxable income took some time and Mrs Baronessa was unexpectedly pregnant with a third child.  It was submitted, also, that in the year ended 30 June 2002 they had underestimated their income as a result of a better than expected business profit and this resulted in a debt for an alleged overpayment of FTB.  It was said that they should be entitled to aggregate the two years by offsetting the under payment in 2001 against the overpayment in 2002.

3. While having considerable sympathy for the position in which Mrs Baronessa has found herself, the legislation is clear and contains no discretion to provide a "top up" payment in any circumstances, no matter how special, where an income tax return is not lodged by 30 June 2002.  The clear words of s28 of the Act result in the entitlement to FTB for the year ended 30 June 2001 being limited to the amount of $5,792.95 actually received with no entitlement to any "top up" payment.  Similarly, the legislation provides no means of taking into account any entitlement or underestimation of income in relation to the subsequent year.

4. It follows that there is no option available to the Tribunal other than to affirm the decision under review.

I certify that the eight [8] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  1 December 2003
Date of Decision:  1 December 2003
Advocate for the applicant:          Self‑represented

Advocate for the respondent:       Ms K. Navarro, Centrelink